Category "Judicial System & The Courts"

Judge Kafka rules any mention of the truth is to be disallowed from the trial

This is a mixture of disgusting, pitiful, and even frightening. You know, if we lived in a society based on laws, one in which we had courts that had a semblance of intellectual and moral honesty, this ruling would be stricken down before the ink dried on it. Torture is a crime, and by law, information may not be classified merely because it would be embarrassing, or as a means to cover illegal activity.

According to Supreme Court ruling 403 U.S. 713 (1971), information may only be classified to protect national security objectives. And if torture is now a “national security objective,” then we’ve already lost whatever war we are pretending to fight, for whatever freedoms we are pretending to have.

The military judge in the 9/11 trial of Khalid Sheikh Mohammed and others granted a government request to make all mention of alleged torture in the court classified. The defense called the ruling ’shameful.’

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The judge, US Army Col. James Pohl, issued a broad protective order barring the disclosure of any information deemed by the government to be classified. The ruling was handed down Dec. 6 and was made public on the court’s website on Wednesday.

Off limits at the military commission trial at the US Naval Base at Guantánamo Bay are any details surrounding the defendants‚ capture, detention, and alleged torture by the CIA. It includes “the enhanced interrogation techniques that were applied to an accused, including descriptions of the techniques as applied, the duration, frequency, sequencing, and limitations of those techniques.”

The judge added that “without limitation, observations and experiences of an accused” would also be treated as classified information as they emerge from a defendant’s mouth.

Defense lawyers had challenged the government‚s expansive assertion of authority to designate certain subjects as protected secrets in the case, saying it was improper for prosecutors to attempt to censor Mohammed and his four co-defendants from discussing their own personal observations of things they involuntarily endured during years of CIA detention and interrogations.

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“The government wanted to ensure that the American public would never hear the defendants‚ accounts of illegal CIA torture, rendition, and detention,” she said in a statement….

“For now, the most important terrorism trial of our time will be organized around judicially approved censorship of the defendants‚ own thoughts, experiences, and memories of CIA torture,” she said. “The decision undermines the government‚s claim that the military commission system is transparent.”

Tom Engelhardt of TomDispatch.com provides this to-the-point overview of the Orwellian “Freedom is Slavery,” “War Is Peace” world we have descended into in America today. This is very much in the vein of the kind of work that has been reported by the likes of Glenn Greenwald with his must-read book With Liberty and Justice For Some, as well as the work of Jonathan Turley and many others.

Everyone knows that in the United States if you’re a robber caught breaking into someone’s house, you’ll be brought to trial, but if you’re caught breaking into someone else’s country, you’ll be free to take to the lecture circuit, write your memoirs, or become a university professor.

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As if to make the point, the Supreme Court recently offered a post-legal ruling for our moment: it a lower court ruling that blocked a case in which five men, who had experienced extraordinary rendition (a fancy globalized version of kidnapping) and been turned over to torturing regimes elsewhere by the CIA, tried to get their day in court. No such luck. The Obama administration claimed (as had the Bush administration before it) that simply bringing such a case to court would (that is, state secrets) — and won. As Ben Wizner, the American Civil Liberties Union lawyer who argued the case, , “To date, every victim of the Bush administration’s torture regime has been denied his day in court.”

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The realities of our moment are simple enough: other than abusers too low-level (see and ) to matter to our national security state, no one in the CIA, and certainly no official of any sort, is going to be prosecuted for the possible crimes Americans committed in the Bush years in pursuit of the Global War on Terror.

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Here is the reality of post-legal America: since the attacks of September 11, 2001, the National Security Complex has engorged itself and grown at a remarkable pace. According to , a Washington Post series written in mid-2010, 854,000 people have “top secret” security clearances, “33 building complexes for top-secret intelligence work are under construction or have been built since September 2001… 51 federal organizations and military commands, operating in 15 U.S. cities, track the flow of money to and from terrorist networks… [and] some 1,271 government organizations and 1,931 private companies work on programs related to counterterrorism, homeland security, and intelligence in about 10,000 locations across the United States.”

Just stop a moment to take that in. And then let this sink in as well: whatever any one of those employees does inside that national security world, no matter how “illegal” the act, it’s a double-your-money bet that he or she will never be prosecuted for it (unless it happens to involve letting Americans know something about just how they are being “protected”).

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Think of the National Security Complex as the of the present moment. In the areas that matter to that complex, Congress has ever less power and, as in the case of the war in Libya or the Patriot Act, is ever more ready to cede what power it has left.
So democracy? The people’s representatives? How quaint in a world in which our real rulers are unelected, shielded by secrecy, and supported by a carefully nurtured, toward security and the U.S. military.

The National Security Complex has access to us, to our lives and communications, though we have next to no access to it. It has, in reserve, those enhanced interrogation techniques and when trouble looms, a set of what might be called enhanced legal techniques as well.

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Theoretically, the National Security Complex exists only to protect you. Its every act is done in the name of making you safer, even if the idea of safety and protection doesn’t extend to your job, your foreclosed home, or aid in disastrous times.

Welcome to post-legal America. It’s time to stop wondering whether its acts are illegal and start asking: Do you really want to be this “safe”?

Want to know how our legal system has been deep-sixed these past decades, and why Occupy Wall Street is sweeping the land? Read This from Glenn Greenwald, a former Constitutional lawyer and now one of America’s best political analysts today. He is also the author of a new book entitled With Liberty and Justice For Some, in which he outlines how the law “is no longer what it was intended to be - a set of rules equally binding everyone to ensure that outcome inequalities are at least legitimate - and instead has become the opposite: a tool used by the politically and financially powerful to entrench their own power and control the society.”

While the Founders accepted outcome inequality, they emphasized — over and over — that its legitimacy hinged on subjecting everyone to the law’s mandates on an equal basis. Jefferson wrote that the essence of America would be that “the poorest laborer stood on equal ground with the wealthiest millionaire, and generally on a more favored one whenever their rights seem to jar.” Benjamin Franklin warned that creating a privileged legal class would produce “total separation of affections, interests, political obligations, and all manner of connections” between rulers and those they ruled. Tom Paine repeatedly railed against “counterfeit nobles,” those whose superior status was grounded not in merit but in unearned legal privilege.

After all, one of their principal grievances against the British King was his power to exempt his cronies from legal obligations. Almost every Founder repeatedly warned that a failure to apply the law equally to the politically powerful and the rich would ensure a warped and unjust society. In many ways, that was their definition of tyranny.

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It is now clearly understood that, rather than apply the law equally to all, Wall Street tycoons have engaged in egregious criminality — acts which destroyed the economic security of millions of people around the world — without experiencing the slightest legal repercussions. Giant financial institutions were caught red-handed engaging in massive, systematic fraud to foreclose on people’s homes and the reaction of the political class, led by the Obama administration, was to shield them from meaningful consequences. Rather than submit on an equal basis to the rules, through an oligarchical, democracy-subverting control of the political process, they now control the process of writing those rules and how they are applied.

Today, it is glaringly obvious to a wide range of Americans that the wealth of the top 1% is the byproduct not of risk-taking entrepreneurship, but of corrupted control of our legal and political systems. Thanks to this control, they can write laws that have no purpose than to abolish the few limits that still constrain them, as happened during the Wall Street deregulation orgy of the 1990s. They can retroactively immunize themselves for crimes they deliberately committed for profit, as happened when the 2008 Congress shielded the nation’s telecom giants for their role in Bush’s domestic warrantless eavesdropping program.

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If you were to assess the state of the union in 2011, you might sum it up this way: rather than being subjected to the rule of law, the nation’s most powerful oligarchs control the law and are so exempt from it; and increasing numbers of Americans understand that and are outraged. At exactly the same time that the nation’s elites enjoy legal immunity even for egregious crimes, ordinary Americans are being subjected to the world’s largest and one of its harshest penal states, under which they are unable to secure competent legal counsel and are harshly punished with lengthy prison terms for even trivial infractions.

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That is what has changed, and a growing recognition of what it means is fueling rising citizen anger and protest. The inequality under which so many suffer is not only vast, but illegitimate, rooted as it is in lawlessness and corruption. Obscuring that fact has long been the linchpin for inducing Americans to accept vast and growing inequalities. That fact is now too glaring to obscure any longer.

This takes the cake (as in “let them eat”). It seems that one thing that money simply cannot afford is justice. I guess for the rich, justice means ‘just us.’ Of course, anyone paying attention to the goings ons with the crime syndicates that operate Wall Street know this is nothing new. As for the rest of the proles of society, let them eat subpoenas.

A fund manager for Smith Barney is getting off without felony charges after he allegedly ran over a cyclist with his Mercedes and fled the scene in Eagle, Colorado, because, the DA says, felony charges would be bad for the fund manager’s business.

Martin Joel Erzinger will not be charged with a felony because “Felony convictions have some pretty serious job implications for someone in Mr. Erzinger’s profession,” according to District Attorney Mark Hurlbert.

Erzinger oversees over $1 billion in assets for “ultra high net worth individuals, their families and foundations,” according to Worth.

Erzinger fled the scene July 3 after allegedly striking Dr. Steven Milo with his 2010 Mercedes Benz sedan on Highway 6, according to court documents. Erzinger later called the Mercedes auto assistance service to ask for his vehicle to be towed but did not report the accident to law enforcement. He claims he was unaware the cyclist had been hit.

“Mr. Erzinger struck me, fled and left me for dead on the highway,” Milo wrote in a letter to the District Attorney. “Neither his financial prominence nor my financial situation should be factors in your prosecution of this case.”

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Hurlbert explained that charging Erzinger with a felony could affect his job and ability to pay restitution. “When you’re talking about restitution, you don’t want to take away his ability to pay,” the DA said.

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“In other words, Erzinger has bought his way out of a felony charge, over the strenuous objections of his victim; it’s very unlikely that online petitions will do any good at this point,” Salmon observed. “Just another thing to add to the list of things that money can buy, I suppose.”

Read The Full Report (and some of the accompanying reader comments are pointedly insightful, as well)

The Supreme Court decides cases in accordance with “The Law.” But “The Law” is not the law that legislatures enact; those laws are what are being adjudicated. So if you believe that the Congress enacts “The Law,” you are mistaken. “The Law” has nothing to do with the laws Congress enacts.

So what is “The Law”? Where does it come from? Well, “The Law” is what the members of the Supreme Court say it is. Where does it come from? They make it up.

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This last example is especially interesting. Five members of the court concurred in Citizens United: Kennedy, Roberts, Scalia, Alito, and Thomas. Kennedy cites these same five jurists 43 times in 24 pages. Thirty-eight of these citations are from previous majority opinions, but 5 are from dissenting opinions. So “controlling rules” need not even be selected from majority opinions; they can be selected from dissenting opinions and anywhere else the jurists choose to find them. Sometimes they are just made up.

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The Court, by adopting a procedure used in seventeenth century England known as stare decisis (let the decision stand) has given America a legal system designed to protect the seventeenth century status quo and enhance the wealth of an aristocracy at the expense of the people. The result is that the nation founded by the ratification of the Constitution in 1789 is not the nation Americans live in. The Court has ignored entirely the fact that the Constitution nowhere enshrines any specific economic system or instructs the government to protect private property. In fact, the only two references to private property in the Constitution have to do with how people are to be deprived of it.

Citizens United has been criticized for putting elections up for sale. The Court’s majority in Citizens United would, of course, deny it, but it is noteworthy that Kennedy, in his opinion, uses the word “marketplace” eight times, even citing previous decisions in which the word is used. But isn’t a marketplace where things are bought and sold?

Everything known as case law in America is nothing but the judicial codification of jurists’ personal opinions justified by specious “controlling rules.” It adversely affects the lives of ordinary people far more than all of the enacted federal code. Thanks to the Court, America is a replica of seventeenth century England, where an aristocracy using a predatory economic system prospers while the people languish, where rights guaranteed to the people are transferred to corporations, and elections are bought and sold…

Because of the enigmatic nature of the Court’s decisions and the abstruse nature of legalese, what the Court has done has been done virtually in secret. To expect ordinary people, even those well educated, to do the research and analysis necessary to reveal the reality behind the Court’s actions is unrealistic. Yet the people need to know. This usurping cabal needs to be exposed.

In opening the floodgates for corporate money in election campaigns, the Supreme Court did not simply engage in a brazen power grab. It did so in an opinion stunning in its intellectual dishonesty.

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“If it is not necessary to decide more, it is necessary not to decide more,” a wise judge once wrote. That was Chief Justice John Roberts—back when—and dissenting Justice John Paul Stevens rightly turned that line against him.

As bad as the court’s activism, though, was its shoddy scholarship.

First, the majority flung about dark warnings of “censorship” and “banned” speech as if upholding the existing rules would leave corporations and labor unions with no voice in the political process. Untrue. Under federal election law before the Supreme Court demolished it, corporations and labor unions were free to say whatever they wanted about political candidates whenever they wanted to say it. They simply were not permitted to use unlimited general treasury funds to do so. Instead, they were required to use money raised by their political action committees from employees and members. This is hardly banning speech.

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The “conceit” of corporate personhood, as Stevens called it, does not mandate absolute equivalence. That corporations enjoy free speech protections does not mean they enjoy every protection afforded an actual person. Is a corporation entitled to vote? To run for office?

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Fourth, the majority bizarrely invoked the “Mr. Smith Goes to Washington” defense. Under the Austin ruling, Justice Anthony M. Kennedy argued, lawmakers unhappy with being lampooned in the movie “could have done more than discourage its distribution—they could have banned the film.” Beyond untrue. There is no scenario under which works of art about fictional lawmakers could be limited by campaign finance laws.

That the majority would stoop to this claim underscores the weakness of its case—and the audacity of the result it has inflicted on the political process.

Washington, DC - After justices on the U.S. Supreme Court ruled in favor of corporate “rights” in the Citizens United case, a new national coalition of diverse public interest, community, and business organizations responded with a bold call to overrule the decision and amend the Constitution to restore the power of people over corporations, beyond election law. A complete list of the “Move to Amend” Steering Committee is attached; and a list of other groups and people who have endorsed this new campaign is available at the coalition’s new website:

“This decision was Pearl Harbor for American democracy,” said Ben Manski, Executive Director of Liberty Tree and a lawyer helping to lead the coalition. “Decades of judicial activism culminating in today’s decision have eroded the power of ‘We the People’ to govern ourselves and so our move to amend the Constitution is not limited to the powers of the Federal Election Commission but focuses on the broader implications of the decision.”

“We are inspired by historic social movements that recognized the necessity of altering fundamental power relationships,” added Riki Ott, the Director of Ultimate Civics and a marine toxicologist whose activism was galvanized by the Exxon Valdez spill. “America has progressed through ordinary people joining together-from the Revolutionaries to Abolitionists, Suffragists, Trade Unionists, and Civil Rights activists through to today.”

“In this decision, a handful of unelected judges have revealed their agenda to expand the influence of corporations at the expense of the rights of individuals, and it will not stand the test of time,” said Lisa Graves, Executive Director of the Center for Media and Democracy and former Chief Counsel to the Senate Judiciary Committee and Deputy Assistant Attorney General. “Corporations aren’t people and simply don’t deserve the same rights as people; we have to work together to put people before corporations.”

“The movement we are launching is a long-term effort to make the U.S. Constitution more democratic,” noted David Cobb, the Director of the Program on Corporations Law & Democracy and an attorney helping to lead the coalition. “We are a diverse coalition with deep roots in communities nationwide. We recognize that amending the Constitution to restore the power of the people over corporations will not be easy, but we know correcting the Supreme Court is imperative to the progress of our nation.”

Today, with its ruling in Citizens United v. Federal Election Commission, the Supreme Court ruled that corporations are persons, entitled by the U.S. Constitution to buy elections and run our government.

Human beings are people; corporations are legal fictions. The Supreme Court is misguided in principle, and wrong on the law. In a democracy, the people rule.

~~~ We Move to Amend ~~~

We, the People of the United States of America, reject the U.S. Supreme Court’s ruling in Citizens United, and move to amend our Constitution to:

- Firmly establish that money is not speech, and that human beings, not corporations, are persons entitled to constitutional rights.
- Guarantee the right to vote and to participate, and to have our votes and participation count.
- Protect local communities, their economies, and democracies against illegitimate “preemption” actions by global, national, and state governments.

ICH - A conference to plan the prosecution of President Bush and other high administration officials for war crimes will be held September 13-14 at the Massachusetts School of Law at Andover .

“This is not intended to be a mere discussion of violations of law that have occurred,” said convener Lawrence Velvel, dean and cofounder of the school. “It is, rather, intended to be a planning conference at which plans will be laid and necessary organizational structures set up, to pursue the guilty as long as necessary and, if need be, to the ends of the Earth.”

“We must try to hold Bush administration leaders accountable in courts of justice,” Velvel said. “And we must insist on appropriate punishments, including, if guilt is found, the hangings visited upon top German and Japanese war-criminals in the 1940s.”

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He noted in the years since the prosecution and punishment of German and Japanese leaders after World War Two those nation’s leaders changed their countries’ aggressor cultures. One cannot discount contributory cause and effect here, he said.

“For Bush, Richard Cheney, Donald Rumsfeld, and John Yoo to spend years in jail or go to the gallows for their crimes would be a powerful lesson to future American leaders,” Velvel said.

Interesting overview of the modern history of the Supreme Court and of the members who make it up. It does help to explain some things. Most telling is the current court’s emphasis of exalting order over liberty, and institutional and governmental power over the individual.

In a 2006 opinion for a unanimous court written by Roberts, the former corporate litigator, the court told taxpayers they had no right to challenge the State of Ohio’s tax abatements and investment credits extended to DaimlerChrysler. Taxpayers had argued that they and their communities would sustain injury because the less money DaimlerChrysler paid, the less money the state would distribute mandated revenue to its cities.

But Roberts and his colleagues offered a short lesson in neoconservative, supply-side economics: “The very point of the tax benefits is to spur economic activity, which in turn increases government revenues.” Apparently, the conservative activists of the Bush-Roberts Court have rejected the observation of Justice Oliver Wendell Holmes that “A constitution is not intended to embody a particular economic theory.”

When the DaimlerChrysler Corp. v. Cuno case is read together with Kelo v. City of New London (2005) - a controversial case permitting private homes to be condemned so that the land on which they sit can be transferred to a private developer - the result is a population stripped of all defenses against corporate power. Workers and taxpayers cannot fight against corporations that take property for the benefit of profit-making, and they are just as powerless to seek redress in court when a town’s officials give the store away to a corporation.

War Crimes? Nope. We’re The Law
By Tom Blackburn
Cox News Service
November 20, 2007

At 10 a.m. in central Europe on Tuesday, it will be 62 years since the United States boldly put warmongering on trial.

The U.S. had the full support of Great Britain, the confused acquiescence of France and the cynical participation of the Soviet Union. All four countries provided judges and prosecutors.

The Soviet Union all but had the neck sizes of the accused on file for the nooses that it considered inevitable. Defeated Germany had its own view of war crimes trials: Victors’ justice. Whenever did losers get a fair shake?

A fair trial for the worst of the Nazis is precisely what the Anglo-American legal eagles had in mind. It would not be easy. The victors were going to be open to the charge that they tried people for crimes that had not been on anybody’s books before the war. They knew it, and mustered all the treaties and treatises on the laws of war they could find.

After much back and forth, they settled on four charges. The first 24 defendants, the so-called “top Nazis,” each were accused of some or all of them. The charges were “Participation in a common plan or conspiracy for the accomplishment of crimes against peace; war crimes; crimes against humanity; and planning, initiating and waging wars of aggression and other crimes against peace.”

Jaded wire service reporters, unable to find the names of crimes among the generalities, began writing that the Nazis were accused of “war criminality” and let it go at that. The skeptics were wrong. The court’s rulings and sentences were not preprinted. Three of the original 24 beat the rap.

They included Franz Von Papen, the conservative politician who did as much as anyone to get Adolf Hitler past the last obstacles to power. He believed that he and his aristocratic pals could control Hitler because they knew wines and horses and the Austrian didn’t. The court decided that toxic superficiality was not a war crime.

Another problem for the tribunal was the Soviet Union. It had a judge on the bench but had done many things that Germans were in the dock for. The other victors had blots on their own records. Warriors can’t help it.

“War,” as Gen. William Sherman said, “is hell.” But there is a difference between the heat of combat and policies of states. The Nuremberg precedent was that if crimes were committed on the authority and orders of the state, leaders who held the authority and gave the orders would be at least as accountable as those who actually carried out the orders.

The post-World War II trials were intended to be only the start. The initiative to criminalize aggressive war and its brutalities was typical of the American idealism that had won a war and was determined to make a lasting peace.

It was of a piece with the United Nations, the Marshall Plan and the Berlin Airlift - all engineered by the United States in the name of peace and freedom for a world in which unimagined destructive power was making war too dangerous for humanity.

A handful of treaties are based on the Nuremberg precedent. The United States was a party at first. Then we stopped signing them. The Senate didn’t want to ratify warm-and-fuzzy treaties and international laws anymore. Americans turned into cold-and-hard testosterone tigers.

Neoconservatives say we don’t need international law because the end of the Cold War means that we are The Law. And the neocons are not the only ones.

Alas, the idea isn’t exactly working. It got us into a lot of trouble. Dealing with other World War II offenders, the United States sentenced a Japanese officer, Yukio Asano, to 15 years of hard labor for waterboarding a civilian. Now we have an attorney general who couldn’t know if waterboarding is torture until he read the secret documents in which his predecessor said it isn’t torture if the president wants it.

The tigers of America - alerted by whoever puts out these talking points - say, “Yeah, but Asano did other things besides waterboarding.”

Do you doubt that if we had access to the secret records we’d find that “other things besides water boarding” have been done in our name? We don’t prosecute high-level torture anymore. Instead, we condemn Iran.